Chief Justice Warren E. Burger: We'll hear arguments next in United States Parole Commission against Geraghty.

Mr. Jones, you may proceed when you're ready.

Mr. Kent L. Jones: Mr. Chief Justice and may it please the Court.

This case is being argued in tandem with Deposit Guaranty National Bank against Roper, in which the Court just heard argument.

In this case, as with the petitioners in Roper, we contend that the case became moot upon the expiration of the named plaintiff's claim after the District Court denied the request for class certification, but the facts of this case differ from those of Roper.

Respondent Geraghty initiated this action in 1976, while he was serving a two and one half-year criminal sentence in federal prison.

He contended that the parole guidelines that are used by the United States Parole Commission in determining whether and when the release of prisoner on parole are invalid under the Parole Commission and Reorganization Act and under the Constitution.

He moved to have the case certified as a class action on behalf of all federal prisoners who have been or will become eligible for parole.

The District Court denied the request for class certification, noting that the proposed class was too broad because not all federal prisoners share respondent's claims in common.

Justice William H. Rehnquist: Was there an allegation of $10,000 in dispute in this case for jurisdictional purposes?

Mr. Kent L. Jones: There was not an alligation of -- of $10,000 in controversy.

He sought declaratory and injunctive relief against the Commission under 28 U.S.C. 1331.

The Court then rejected respondent's legal claims on the merits and granted summary judgement to the Commission.

Respondent appealed, but while his appeal was pending, he was released from federal prison at the expiration of his criminal sentence.

The Court of Appeals ruled that although respondent's legal claims became moot upon his release from prison, the case was not moot.

The court reasoned that if the proposed class was certifiable and the court thought that it was because of a possible use of subclasses, then the case can be remanded to the District Court for class certification and then proceed on behalf of the class.

And the court also reversed the award of summary judgement for the Commission ruling that under respondent's alligations, the guidelines may conflict with statutory parole criteria and create an ex post facto enhancement of punishment.

Justice William H. Rehnquist: Had the plaintiff's prayed for subclass certification in the District Court?

Mr. Kent L. Jones: Neither in the District Court nor in the Court of Appeals.

In the Court of Appeals, the plaintiff contended that the proposed class was not too broad.

The Court of Appeals didn't agree with that and in -- and itself constructed the subclass theory.

Justice William H. Rehnquist: Raised it to sua sponte?

Mr. Kent L. Jones: Yes, the Court of Appeals raised it sua sponte.

Now, we sought certiorari on four questions and I'll discuss two of those at this time.

First, whether the case became moot upon respondent's release from prison.

Second, whether the Parole Commission and guidelines are invalid under the Parole Commission and Reorganization Act, and we rely on our briefs on the remaining issues.

This Court has ruled on several occasions that there is no constitutional case or controversy, unless there exists at each stage of the litigation, an actual dispute between adverse parties.

And because of that, in Jacobs, Pasadena and Kremens, the Court has held that a case becomes moot if at the time the claim of the named litigant becomes moot, there is no properly certified class that can succeed as a party to the adversary position in the litigation.

Justice John Paul Stevens: Mr. Jones, would this case become moot if the plaintiff had been paroled before the certification question had been decided in the District Court?

Mr. Kent L. Jones: It would be equally moot.

Justice John Paul Stevens: So, it really doesn't matter if it's before or after sort of -- either -- either before certification or after --

Mr. Kent L. Jones: What matters (Voice Overlap) --

Justice John Paul Stevens: -- certified be the same issue.

Mr. Kent L. Jones: Right.

What matters is at the time his claim became moot, there was no properly certified class that could come into the case as a party to the adversary position in the litigation.

Justice Byron R. White: But you -- if there -- if the class have been certified and then it -- it had become, "moot" that the case would have gone on?

Mr. Kent L. Jones: Yes, so that under Franks against Bowman Transportation Company.

Justice Byron R. White: Yes, yes.

Justice Potter Stewart: And how about Sosna against Iowa?

Justice Byron R. White: Sosna and --

Mr. Kent L. Jones: And also, under Sosna.

Justice Potter Stewart: Yes.

Justice Byron R. White: And I suppose if in the Court of Appeals, the court had just happened to break up its decision in two parts and as the very -- and as the very -- and as the very first opinion that wrote, it reversed the class action.

This is before -- before there had been a parole or --

Mr. Kent L. Jones: Right.

Justice Byron R. White: -- suppose that the Court had decided that the class action decision was wrong and then he was paroled, then it would be Franks, I suppose or Sosna.

Mr. Kent L. Jones: Well, if the class was certified, it would be a Franks or a Sosna.

It's -- this Court hasn't decided whether a Court of Appeals can certify a class.

It reserved the question in East Texas Motor Freight against Rodriguez, but the facts of this case wasn't -- no class was certified.

The respondent was released from prison while the appeal was pending and it was after he was released from prison that the Court of Appeals entered its judgement.

Well, under Kremens, Jacobs and Pasadena, there are two separate inquiries and the first is whether at any time in this litigation, respondent's claims became moot and there's really no dispute about that in this case.

This Court has already decided the issue in Weinstein against Bradford.

It held that a prisoner's claims challenging parole procedures become moot upon his release from prison, but the situation maybe different in the case where a prevalent plaintiff is seeking review of the judgement.

It would make no sense to say that a -- a plaintiff's claim is made moot by the entry of judgement in the District Court.

The prevailing plaintiff has standing both to enforce his claim, his judgement and he also retains standing in some situations to seek collateral relief that was denied in the District Court and it was for this reason, that in Coopers & Lybrand and United Airlines against McDonald, the Court assumed that whether a plaintiff wins or loses in District Court, he retains standing to review the denial of class certification.

It's -- the judgement in the case didn't make it moot.

The question after judgement is entered is whether the plaintiff obtained all the relief he requested on his claim.

Justice Byron R. White: I know that's what the -- what the result, was.

How about -- how about your position?

Is your position in this case really consistent with that?

Wouldn't you --

Mr. Kent L. Jones: Yes.

Our position is that this case is different from that.

Our case is different because --

Justice Byron R. White: I know -- I don't understand how it can be really.

Justice Potter Stewart: Which one is Roper, the one we're just talking --

Mr. Kent L. Jones: Roper, the case that we're just arguing.

Justice Byron R. White: Right.

Mr. Kent L. Jones: The question in Roper would seem to be whether in the context of that case, the judgement of the District Court made the case moot.

The tender didn't make the case moot.

It was simply an offer to settle.

It was not accepted by the -- by the respondent.

What happened after the tender was rejected was that the District Court entered an order saying that you're entitled to these damages.

And that -- and then the question that -- that remains for the Court is whether that judgement -- is whether the respondent in that context has standing to appeal the judgment to raise the collateral issues on which he was denied relief in the District Court.

Our case is different from that.

The respondent's claim in --

Justice Byron R. White: How do you feel which should decide Roper?

Mr. Kent L. Jones: Well, I would -- I'm reluctant to -- to indicate the result, but I think the question there in Roper is whether -- is whether the judgment of the District Court mooted the case, but the question in -- that's not --

Justice Byron R. White: The interest of -- what interest did the named party had after judgement?

Mr. Kent L. Jones: In Roper?

Justice Byron R. White: Yes.

Mr. Kent L. Jones: Well, he had -- he had the same --

Justice Byron R. White: Had been a certified class.

Mr. Kent L. Jones: He had the same interest that this Court hypothesized, would exist in United Airlines against McDonald and in Coopers and Lybrand.

Justice Byron R. White: Well, I know, but he did -- he didn't have any interest himself, except in -- to continue the class action.

Mr. Kent L. Jones: Well, in some context, the plaintiff will have an interest.

Justice Byron R. White: Well, did he just -- tell me -- well, just tell me what the interest was in McDonald or in Roper --

Mr. Kent L. Jones: Well I --

Justice Byron R. White: -- other than -- other than to --

Mr. Kent L. Jones: I -- I'd like to start --

Justice Byron R. White: -- other than the class part of the case.

Mr. Kent L. Jones: In -- in McDonald, the -- the plaintiff's interest in the class --

Justice Byron R. White: How about Roper?

Mr. Kent L. Jones: I thought you're giving me a choice.

In Roper, the plaintiff was seeking damages that would (Voice Overlap) that would enhance in total sum, if class relief is available.

Justice Byron R. White: So he -- but his only interest after judgement, was the class aspect to the case.

Mr. Kent L. Jones: Well, in the benefit that he would obtain from having a class claim --

Justice Byron R. White: Exactly.

So, his -- his interest was measured by the class aspect to the case.

Mr. Kent L. Jones: Yes.

Justice Byron R. White: Now, in this case, how about this case?

Mr. Kent L. Jones: Well, the distinction in this case is that the respondent's claims expired without the benefit of any District Court decision.

Justice Byron R. White: I know, but he still had a very solid interest in maintaining and pushing the class aspect of the case.

Mr. Kent L. Jones: He may have had an interest in pushing it, but he didn't have a live claim.

His claim had been extinct by this wholly outside --

Justice Byron R. White: So, the one in Roper.

Mr. Kent L. Jones: No.

Justice Byron R. White: His claim, his own claim had been extinguished.

Mr. Kent L. Jones: Well, I think the question is a little different in the two cases, although the ultimate question is the same, whether the plaintiff's claim is moot.

In our -- in Geraghty, we contend that the plaintiff's claim is moot because it was extinguished by events wholly apart from the litigation.

Weinstein and Jacobs, Pasadena, these are all those types of cases.

Justice John Paul Stevens: Mr. Jones, are you saying this, so I get your point that if in this case, the District Judge had ordered the man paroled and the Government had acquiesced in the order and said we won't appeal then it would not have been moot? Would that be a different case?

Did someone (Voice Overlap) --

Justice Potter Stewart: It'd be more ahead on the previous case.

Mr. Kent L. Jones: It would -- it would be different from the case we have.

I'm not --

Justice John Paul Stevens: Would it legally -- is it different in any significant respect and if not, why are you laboring the point?

Mr. Kent L. Jones: Well, even under Mancusi against Stubbs, it depends on I think, in part on how we acquiesce in the claim.

If we simply acquiesce in it, for the purpose of -- of complying with this Court's order --

Justice John Paul Stevens: (Voice Overlap) opinion.

You let him out and you don't appeal.

Mr. Kent L. Jones: Well, if we don't appeal, then the -- you're asking whether he can appeal?

Justice John Paul Stevens: Yes, that's -- wouldn't then the case be precisely the same as the Roper case because you're distinguishing Roper on the ground that here, the parole came without a court order and I say well, suppose we had a court order, what -- why would it be --

Mr. Kent L. Jones: Well, the distinction I suppose between that case and Roper is that after the order was entered, the Government by your hypothetical, in effect, settled its claim.

Justice John Paul Stevens: Well, that's what the bank in turn --

Mr. Kent L. Jones: But -- but the bank wants to settle the claim, but Roper never accepted the tender.

The money is still in the District Court.

Justice John Paul Stevens: Because he wants to maintain his class action and the same thing --

Mr. Kent L. Jones: That's right.

Justice John Paul Stevens: -- as Geraghty.

Mr. Kent L. Jones: But the different --

Justice John Paul Stevens: -- (Voice Overlap) go out of jail by making the litigation going.

Mr. Kent L. Jones: The difference is that if -- if the claim is in fact settled, that raises a whole new different -- a whole different question of mootness.

This Court noted in Indianapolis Employment Commission against Burney that settlement of a claim often moots the controversy.

Justice John Paul Stevens: When neither -- in neither case are they settling the class aspects of the claim, but they're settling everything else, isn't that right?

Mr. Kent L. Jones: Well, I'm not sure what you mean by, in either case.

Justice John Paul Stevens: In either Roper or Geraghty?

Mr. Kent L. Jones: Well, in Geraghty, there was no settlement.

Justice John Paul Stevens: Well, I mean that Geraghty is modified by saying he gets out pursuant to a court order.

I'm -- I'm just trying to understand --

Mr. Kent L. Jones: It maybe --

Justice John Paul Stevens: -- are you relying on the nonexistence of a court order?

Is that critically your case? That's what I'm trying to find out (Voice Overlap) --

Mr. Kent L. Jones: Well, the question really is -- is what -- in Roper, the question is what the bank's relying on.

We're relying on the fact that the claim expired before any relief was entered.

So, we don't have to decide like in Roper whether the relief was all that was sought.

Here, the claim expired before any relief could be given.

A -- a prisoner whose claim has expired is not entitled to seek coercive relief.

Justice Thurgood Marshall: You mean, one of his claims, but he had two claims, didn't he?

Mr. Kent L. Jones: Well, he -- the claim that he had that expired was -- was his claim which was up to that -- that point, the only claim that he was the only party in the case who could raise any claim.

Mr. Kent L. Jones: -- that if a -- if a defendant undertakes a series of actions in which he immediately pays off class representatives' claims before certification, it's possible that the case could be viewed like Gerstein against Pugh that entered the mootness of the claim was inevitably intervening before even the class certification order could be ruled on.

Justice Thurgood Marshall: It ought to be the case -- a very old case of Hansberry against Lee whereas the Court said, "You couldn't do that way back."

It was in the 1940s.

Mr. Kent L. Jones: Well, I -- we don't dispute that.

Justice Thurgood Marshall: Well, I think you are going into ancient history.

Mr. Kent L. Jones: Yes.

Well, we don't dispute that in any event because here, the -- the plaintiff's claim became moot, well, after the judgment -- the class certification motion was ruled on.

Chief Justice Warren E. Burger: Would it be irrational to refer back to the Roper?

Would it be irrational for Roper to claim that he does have a continuing economic interest -- economic interest in the maintenance of the class action because if there was no class action ever allowed, the expensive litigation falls on him, whereas if he can get 10,000 or 90,000 people in, the expense litigation is going to be spread and he won't have to pay so much?

Mr. Kent L. Jones: I think that's correct.

I think that also, there will be injunctive situations where the class representative's injunctive relief will be made better, if other members of his class also obtain injunctive relief.

Chief Justice Warren E. Burger: No, relating that this case, would Geraghty's situation be any better if there were injunctive relief with respect to the class action claim?

Mr. Kent L. Jones: His relief would be unaffected.

Chief Justice Warren E. Burger: He is either out or he's in.

Mr. Kent L. Jones: Well, that's the nature of the parole relief that he requests.

The fact relied on the Court -- by the Court of Appeals that the class action may have been certifiable, was irrelevant for two reasons.

One, we've already discussed the action wasn't certifiable in the Court of Appeals because the respondent's claim was moot.

He couldn't serve as the class representative.

There was no other litigant in the Court who could have served as the class representative, the class who thus -- was thus, not certifiable.

But more importantly, there has to be an actual dispute between adverse parties at each stages of litigation, the fact that other parties could have been added by intervention or class certification while respondent retained his live claim, doesn't alter the fact that they were not.

It's a hypothetical or a potential controversy that doesn't create a constitutional case.

And because the case became moot when it was in the Court of Appeals, this Court too, has no jurisdiction to grant a motion to intervene or add parties by class certification.

Federal courts have no power to exercise in moot cases other than to remand to their courts below for the judgements to be vacated and we submit that's the appropriate disposition in this case.

But if the case is not moot, we think the judgement of the District Court should have been affirmed.

Justice Byron R. White: And just before you leave the mootness, I take that your position would be the same here if -- if this case didn't involve this kind of a claim, but involved the Roper kind of a claim that the -- that the Roper case became moot on appeal.

Say -- say that there had been an appeal, a proper appeal and that they had settled with him in the Court of Appeals.

Mr. Kent L. Jones: If they had settled in the Court of Appeals, then the question is whether the settlement manifested an intention to -- for all claims to be ended.

Justice Byron R. White: Well and Roper -- Roper just took his money and -- and that -- that the order denying the class certification, not yet been reversed, Roper is just paid off and he accepted it.

Mr. Kent L. Jones: Well, I think that that's -- that issue that the Court had in mind in McDonald in its footnote, when it noted that a settlement is not necessarily always intended to extinguish the plaintiff's right to appeal.

The Court assumed on the facts of McDonald that that settlement didn't have that effect.

It emphasized that the -- the plaintiffs who settled had already obtained summary judgement on their claims.

Justice Byron R. White: (Voice Overlap) -- everybody -- everybody agrees that -- no one claims that the Roper would have any for himself, hasn't anymore claimed.

His only interest, remaining interest is in the class aspect of the suit.

Would you say that that case might not be moot and yet yours is?

Mr. Kent L. Jones: Well, I don't -- I wouldn't say that his -- that his personal claim is moot, by the fact that he's had a favorable judgement.

This Court -- he retains standing to enforce the judgement for one thing.

He also retains standing under the Court's --

Chief Justice Warren E. Burger: (Voice Overlap) we have to do enforce a judgement when the money is in the registry of the court.

Mr. Kent L. Jones: Well, if -- if he goes to the --

Justice Byron R. White: In his pocket then, might be an example to you, it's in his pocket.

Mr. Kent L. Jones: Well and I --

Justice Byron R. White: They -- they settle with him and pay him and -- and he says, "Yes, that's all the money I'm entitled to."

But now, let's just remember, we're going to continue the class aspect of the case.

Mr. Kent L. Jones: Well, under McDonald, he would be entitled to seek such a settlement.

Justice Byron R. White: You mean to pursue the class aspect of the case?

Mr. Kent L. Jones: Geraghty is different because he hasn't settled his claim.

We -- we're not -- this case doesn't turn on --

Justice Byron R. White: It's just worn-out.

Mr. Kent L. Jones: His claim expired.

It hasn't -- it can't be adjudicated.

The question in Roper is whether after claim is adjudicated, the plaintiff got everything he wanted.

Justice Byron R. White: Well, then --

Mr. Kent L. Jones: In this case, he doesn't have a claim he can take to federal court.

Justice Byron R. White: In my example of you -- in my example of you, there was nothing left to adjudicate on Roper's claim in my example I just gave you, because --

Mr. Kent L. Jones: Well, I don't want to say that I wouldn't agree with you that that was a settlement that extinguished all the claims that Roper had left to raise.

All I'm saying is that, that would then be the question.

Justice Thurgood Marshall: Mr. Jones, your difference is not -- that if they had rushed up the period for parole would be at one thing, but this was just normal parole.

Isn't that what your point is?

Mr. Kent L. Jones: This was normal parole.

He was --

Justice Thurgood Marshall: So that's -- the point is it wasn't done for the benefit of this case.

Mr. Kent L. Jones: Certainly not.

He was -- his release was simply when his criminal sentence expired.

Justice Thurgood Marshall: And he's not the (Inaudible) between that and Roper and in any other case.

He didn't do (Voice Overlap) --

Mr. Kent L. Jones: That's a significant difference that we rely on.

Justice William H. Rehnquist: Well, what if in Roper, Mr. Jones, the plaintiff had written a letter to the bank before suit saying, "I claim $15,000 and if you don't pay me off, I'm going to bring a class action for myself and on a bunch of other people" and the bank replied, "Here is a check for $15,000."

And the plaintiff nonetheless went in to District Court and filed an action saying, "I've got my $15,000," but the class action hasn't been settled.

Would the -- would the District Court have any jurisdiction at all?

Mr. Kent L. Jones: No, I don't think he would.

That would be much like our case where the claim was simply extinguished.

There was no -- the power in the federal court to adjudicate his claim because it -- it didn't exist at that point.

Justice William H. Rehnquist: Has the class action aspect had existed separate and apart from a live controversy as to some substantive matter?

Mr. Kent L. Jones: And under the rules of procedure, it can't.

Justice Byron R. White: Well --

Mr. Kent L. Jones: I also wanted to --

Justice Byron R. White: Well, then I would think you were to say on that basis, how -- how come Sosna or how come McDonald, the class aspect of the case survive?

Mr. Kent L. Jones: Well, in Sosna, the reason that it --

Justice Byron R. White: The disappearance of the name that was claimed.

Mr. Kent L. Jones: -- survived was because a new party had come into the case.

Under the Court's analysis, it was the class who've served as the adverse party.

There's no party left in our case.

Justice Byron R. White: No party left in Roper --

Justice Harry A. Blackmun: Would be easier for you, if we overrule McDonald?

Mr. Kent L. Jones: I can't deny that it would be easier for us, but I wouldn't want to go on record as saying that McDonald is irreconcilable with our position.

Justice Harry A. Blackmun: Well, you don't want to go on record with that.

You were reluctant to express something about Roper and that it seems to me, you've been talking about Roper under the Court's question to the last 15 minutes.

Mr. Kent L. Jones: Well, then let me go on to the merits of this case --

Justice William H. Rehnquist: Perhaps, this Court gave you no choice.

Justice Harry A. Blackmun: You're -- you're in bet with Roper whether you like it or not, I'm afraid.

Mr. Kent L. Jones: My white lie hasn't come on, but should it have?

And I see that I'm really close to the end of my time and I'd like to say just one word on the merits.

As I started to say, the guidelines were adopted by the Commission in 1973.

Respondent's contention that the guidelines are invalid under the Parole Commission and Reorganization Act, we think, neglects the fact that in 1976, when Congress enacted the legislation, it specifically approved and incorporated the Commission's preexisting guidelines into this legislation.

The Conference Committee Report makes it perfectly clear.

It states that the Act incorporates the preexisting guidelines system into the statute and makes its improvements a permanent part of the Commission's decision-making process.

I'll reserve the balance of my time.

Chief Justice Warren E. Burger: Very well, Mr. Jones.

Mr. Flaxman.

Argument of Kenneth N. Flaxman

Mr. Kenneth N. Flaxman: Thank you.

Mr. Chief Justice and may it please the Court.

The mootness question in this case is from a practical standpoint not very significant.

If the Court holds that this case is moot, my clients who are before this Court, is prospective additional respondents or petitioning interveners will file a new case.

Chief Justice Warren E. Burger: What -- what can the judicial branch do for Mr. Geraghty now?

Mr. Kenneth N. Flaxman: Well, Mr. Geraghty is here on behalf of these unnamed members of the potential class.

Chief Justice Warren E. Burger: That's not my question.

What can the judicial branch do for Mr. Geraghty?

Mr. Kenneth N. Flaxman: Oh!

He can obtain absolutely no additional personal relief.

He's here representing these additional people, some of whom have come forward and identified themselves and authorized the attorneys, Mr. Geraghty, to proceed on their behalf, as they join with Mr. Geraghty, in believing that the present system is unlawful and in seeking to get a judicial vindication of -- of their rights.

Justice Byron R. White: Are you saying -- you say, they can do for him.

This is what they could do for him, if the class had been certified prior to his parole?

Mr. Kenneth N. Flaxman: That's correct.

The only relief that Mr. Geraghty sought in the class action aspect to the complaint, was declaratory judgement that the -- the system is unlawful.

He sought individual relief to have them enlarged from custody to preserve his claim, so that there'd be no question of mootness, which is what we have been – what's been debated today.

The -- the relief they wanted was a judgement on his behalf and behalf of the class that the system was unlawful.

That's precisely the same relief that would be obtained today or tomorrow in this case or in a subsequent case challenging the same system.

The system --

Justice Thurgood Marshall: As of now, he couldn't file any kind of lawsuit, could he?

Mr. Kenneth N. Flaxman: That's correct.

Justice Thurgood Marshall: And that's how he stands now?

Mr. Kenneth N. Flaxman: That's correct.

I've discussed with him the possibility of returning to prison to retain standing and he suggested that would --

Justice Thurgood Marshall: That's -- that's a different case.

Mr. Kenneth N. Flaxman: That's -- that's correct.

Justice Thurgood Marshall: As of right now, he can't file anything, anything.

Mr. Kenneth N. Flaxman: That's correct.

His personal claim has -- hasn't filed --

Justice Thurgood Marshall: I didn't say it personally, I said any kind.

He couldn't file a class action either, could he?

Mr. Kenneth N. Flaxman: Not, about the parole system.

He's not presently agreed.

He can file -- he could not file a new case, but --

Justice Thurgood Marshall: He couldn't anywhere --

Mr. Kenneth N. Flaxman: But --

Justice Thurgood Marshall: -- but he can -- he can argue here?

Mr. Kenneth N. Flaxman: Well, he can't continue --

Justice Thurgood Marshall: He can argue here?

Mr. Kenneth N. Flaxman: Well, yes.

Justice Thurgood Marshall: He could argue in any of the courts?

Mr. Kenneth N. Flaxman: That he could argue in the Court of Appeals, he could argue in the District Court, at the time the action was commenced --

Justice Thurgood Marshall: How?

As of now, how could he argue any?

Mr. Kenneth N. Flaxman: As of now, he's continuing to assert the standing of the persons who are presently in custody, who have presently aggrieved by the system.

Mr. Kenneth N. Flaxman: That's correct, but he can continue to defend through appeal the case once it has been filed.

At the time he filed a lawsuit in 19 -- September of 1976, Mr. Geraghty was in prison and he had standing at that point.

At that point, he was an adequate class representative.

The question which was raised is to whether he -- the District Court could find that Mr. Geraghty could still be an adequate representative really isn't dispositive or isn't even relevant to the question of whether this case is moot.

There's a continuing controversy between the members of the potential class and the Parole Commission about the legality of the guidelines.

The interest of those persons are I think, adequately and vigorously presented in this Court as they were in the Court of Appeals on behalf of Mr. Geraghty.

Justice William H. Rehnquist: But under that analysis, you could be the named plaintiff just as well as Mr. Geraghty?

Mr. Kenneth N. Flaxman: That's not true.

I was never personally aggrieved by the guidelines and I did not have standing at the time the action was commenced to bring the action.

Justice William H. Rehnquist: So, there is some sort of a bridge-crossing at some stage rather or --

Mr. Kenneth N. Flaxman: Well, I think the rule is at the time the action is commenced, the class representative must be a member of the class that he seeks to represent.

That's consistent with Rodriguez and that's what met in this case and Mr. Geraghty was in custody, had been denied parole, and had exhausted his administrative remedies.

Justice William H. Rehnquist: But he wasn't a member of the class which he's -- which he described as complaint?

Mr. Kenneth N. Flaxman: He --

Justice William H. Rehnquist: I mean that they had -- the Court of Appeals held that that would not be a proper class.

Mr. Kenneth N. Flaxman: Well, that's -- I have been saying since -- in all the briefs that the Government is misreading the opinion of the Court of Appeals.

What -- when I read it, it says that we are not convinced -- it is not clear if the class is overbroad, and that's question for the District Court.

If the District Court says it is overbroad and maybe it isn't, then the District Court should consider sub-classing, but the Court of Appeals did not hold it was overboard.

It said that, that is not a reason to per se deny class certification.

So, I think that's a misreading of what the Court of Appeals said.

When Mr. Geraghty filed this complaint and in answer to a question posed on Mr. Justice Rehnquist, there was an alligation at the jurisdictional amount, which have been satisfied for each member of the class, which became unnecessary on statutes meant.

Justice Byron R. White: Well, if you lose this case, it just means that some other member of the class can sue, I guess?

Mr. Kenneth N. Flaxman: That's correct.

Justice Byron R. White: In this case anyway, you've lost a filing fee?

Mr. Kenneth N. Flaxman: That -- that's correct.

This is actually the second --

Justice Byron R. White: In the Roper type case, it maybe that people are foreclosed by the statute of limitations?

Mr. Kenneth N. Flaxman: Well, the --

Justice Byron R. White: But -- but there's no problem about that in this case?

Mr. Kenneth N. Flaxman: That's correct that we -- this actually is the second case which was filed to present the same theories as to the invalidity of the guidelines.

The first case was various to individual action.

Justice Byron R. White: Right.

Mr. Kenneth N. Flaxman: And that became moot and this was for as a class action to avoid that problem.

We did everything possible to obtain class certification which the Commission agrees now, although it disagreed in District Court, but have avoided the mootness problem.

Justice Byron R. White: Or you could -- or you might have had five or six named plaintiffs to start with?

Mr. Kenneth N. Flaxman: Well, I -- I could've had as many as -- the number of our prisoners.

Justice Byron R. White: As you wanted -- as you wanted.

Mr. Kenneth N. Flaxman: These people are anxious to -- for me to represent their rights and obtain vindication and have -- have this Court consider whether the Parole Commission in making parole release decisions --

Justice Thurgood Marshall: Why didn't you have one of them to intervene?

Mr. Kenneth N. Flaxman: I did have one to intervene.

I have one intervene in the District Court and seek --

Justice Thurgood Marshall: Why'd you have another one to intervene?

You see you've got (Voice Overlap) --

Mr. Kenneth N. Flaxman: -- I have -- I think, 13 potential interveners in this Court.

Justice Thurgood Marshall: Did they -- did you ask us to let them intervene?

Mr. Kenneth N. Flaxman: Well, the motion that was filed as the substitute respondents or in the alternative to intervene.

Justice Thurgood Marshall: Oh and the alternative, I missed the alternative.

Mr. Kenneth N. Flaxman: Okay, I've --

Justice Thurgood Marshall: But it is my point (Inaudible)

Mr. Kenneth N. Flaxman: I -- and there are -- those people, the original prospective, additional respondent's, petitioning interveners, most of them have already satisfied their sentences, so there are --

Justice Byron R. White: And you don't -- and are these people indigent?

There were some -- the -- the indecency wasn't raised in District Court and he was able to afford $15 without depriving himself of the necessities of everyday life.

But these people won't believe that it's wrong to the Parole Commission to resentence them once they get to prison.

I think it's wrong, for example, to get a three-year sentence then go to the Parole Board four months after you're in prison and to be told that, you're never going to be paroled because we think, you should serve 70 to 85 months in prison.

Justice Byron R. White: Yes.

Mr. Kenneth N. Flaxman: That's the situation presented by Mr. Hayes, as one of the additional perspective respondents.

There's something wrong with that system and what's wrong with that system is that it's contrary to what Congress said the Parole Commission should be doing, when Congress passed the 1976 Act.

The -- just to -- to backtrack a little bit, our basic claim in the case is that the guideline system is unlawful, that it's contrary to the statute.

The Court of Appeals reviewed the case from the grant to summary judgment.

Resolved, look at the facts that were in dispute, in the light, most favorable to the plaintiff, the potential class and found that there were several facts which were material to its theory, which could not be decided on the present record.

The first is what way that's given to institutional behavior in parole release decisions.

We allege that that is not a factor in parole release decisions.

The Court of Appeals -- the Government disputed that in their answer and the Court of Appeals concluded that that question can only be disposed off on a full record.

We expect to show in the District Court that as the Parole Commission's information reveals and perhaps 3% of all cases is a decision made to depart from its guidelines because of institutional behavior.

What the Parole Commission Guidelines consist of is a chart which contains customary lines from prisoners for various categories of offenses.

The categories are unrelated to the sentence which was imposed or to the sentence which could have been imposed.

It's possible to be sentenced for an offense which is punishable by not more than five years in prison, but come up on the Parole Commission with an offense which should've -- which requires you to serve 70 to 85 months in prison.

The -- the table of the -- of the guidelines is this matrix, which consists of offense severity levels and salient factor scores.

The -- our allegations and we expect to show in the District Court, the way in which a parole release decision is made, is that within four months after someone's in prison, they got a parole hearing.

At that parole hearing, two hearing examiners sit down and look at these guidelines to re-rate the severity of a prisoner's offense.

They don't look at the sentence which was imposed.

They don't look at the sentence which could've been imposed.

They look at how this prisoner matches up on their score.

The Court of Appeals held that we were entitled to summary judgment on that allegation that we would have to prove it and I think we can prove that easily, if we can get these individual decisions.

But on this record, I think the Court has to view the record, the same way the Court of Appeals did in light of most favorable to us, as if we had proved this.

Once the Parole Commission has re-rated the severity of the prisoner's offense, they compute his salient factor score.

The salient factor score goes from 0 to 11 and awards points for various things that may or may not have been statistically significant in post-release behavior of some prisoners.

The -- once those two scales are computed, the hearing examiners look at the chart and see what the customary length of imprisonment could be.

Then there's a judgment made as to whether a decision should be made to depart from those guidelines.

We -- at the hearing, we had in the District Court following remand, we discovered that the Parole Commission has meetings periodically of its hearing examiners, which we expect the evidence to show, is to keep them in line, to make sure that they depart from the guidelines as in frequently as possible.

What they do is to keep score, keep track of how many decisions each hearing examiner makes outside of the guidelines and then to hold meetings --

Chief Justice Warren E. Burger: Now, where do -- where do we find this in the record?

Mr. Kenneth N. Flaxman: That's going to come out on remand.

I'm just trying to explain what we would prove.

That the Government contends that --

Chief Justice Warren E. Burger: Was there an offer of proof to this effect?

Mr. Kenneth N. Flaxman: No, there was a hearing held following remand on the class certification question and that came out of that hearing.

This was following remand from the Court of Appeals before the Government's petition, writ for certiorari was -- was filed.

Mr. Kenneth N. Flaxman: -- represents in this Court that we use our judgment in making individual parole release decisions and I'm making these representations to make it clear to this Court that we expect the evidence to show exactly the opposite in a District Court and that the Court should not accept the Government's representations which have not been the subject of a reliable fact-finding in the District Court.

That's the -- the statistics which are in the record, are that in, I think 1977, 6% of prisoners who were released before they had served the customary lengths of imprisonment.

The customary lengths of --

Chief Justice Warren E. Burger: You mean the -- the maximum, the full amount of the sentence?

Mr. Kenneth N. Flaxman: No, the -- a prisoner gets a sentence from the judge.

He then goes to the Parole Commission and they say, "We think you should do 70 to 85 months in prison.

We see no reason to make a decision outside of that customary range of imprisonment.

Therefore, parole will be denied and you'll be continued to expiration," which means, generally that the prisoner will serve those five years that the judge gave him, less time off for good behavior.

The Parole Commission doesn't consider of a sentence which is given.

For I think 25% of all prisoners that customary length of imprisonment, the new sentence to get from the Parole Board is more than they've got from the judge.

And for another 25% of all prisoners, what the Parole Board wants to do is to release them before they even become eligible for parole.

This is only 50% of all prisoners who accidentally fall into this range of customary lengths of imprisonment.

Now, Congress in passing the 1976 Act did not tell the Parole Board that it should be in sentencing business.

Congress, the 1976 Act was the result of a compromise between the House Bill which would've created the presumption of parole after prisoner has served the third of his sentence and the Senate Bill which would've reenacted the old parole release criteria and which would have -- or which would have sought to ratify the guidelines then existing.

The compromise which came out of the Conference Committee was to in effect reenact the same -- the preexisting criteria but to require that decisions be made pursuant to guidelines.

Now from this, the Commission says that, "Well, Congress is authorizing us to do what we've been doing before, which was to use those kinds of guidelines."

That's not at all clear and that's exactly contrary to what's in the Conference Report which talks about how in promulgating its guidelines, the Commission shall be cognizant to past criticisms of its decision-making.

Some of those criticisms which are in the House hearings was that the guidelines which the Board is using are wrong.

You serve the sentencing function and are just improper.

The Board should not be in the sentencing business.

The -- something else, the 1976 Act did was to make permanent some changes that the Board have adopted in administrative reorganization in 1973.

The Commission seeks to argue that by making those improvements permanent, what Congress is doing, was saying, the guidelines should be permanent.

But if we go back and look at the Senate hearings, we see that the controversy about those improvements was about the delegation of authority to hearing examiners, that there were some questions that whether that could lawfully be done with that new legislation and that's what Congress was looking at.

There's absolutely no indication that Congress intended that parole release decision to be a resentencing decision.

That Congress intended parole to be made without consideration of what the prisoner did in prison, which is what the Court would have to read the statute is being, in order to hold that these guidelines are consistent with the 1976 Act.

This -- the Act rather than saying that all these factors could not be considered, the Act reaffirmed the view that parole is dependent upon what people do in prison and that's -- we allege and expect to prove in the District Court is not a factor in these guidelines or what these guidelines are as a resentencing tool.

One question which I think has been answered without dispute in the District Court is where do these guidelines come from?

How did the Parole Commission get in the business of making parole release decisions without considering the actual length of sentence?

And we've documented that fairly well without any dispute, that what happened was that the Parole Commission did a study of how decisions were made in youth correctional cases, where there was no sentence.

And this study show that two factors or three factors were used in parole release decisions and the people who did the study decided or mistakenly believed that all release decisions were made the same way as youth correctional cases and created guidelines for the Board which applied those two or three factors.

The fact is that 75% of all adult prisoners have to serve a third of their sentence before they become eligible for parole and it's under -- it's wrong to say that the Parole Commission was making -- was -- was using the same policy in youth act cases that it was using in adult cases.

But that -- that's why the length of sentence is no longer a factor in the parole release decisions, because the Parole Board entrusted to its researchers the task of developing guidelines which probably weren't understood by the Board which were caved to it as having been scientifically developed and which should've been used to interfere with the interest that the members of this potential class having parole release.

The -- some of the other claims which were presented in the complaint, which were not brought up I believe, in the narrow question posed in the petition for writ of certiorari, include -- if these guidelines are consistent with the statute, could Congress have lawfully delegated this power to the Parole Commission?

Could Congress without any standards at all say, you are to set -- you, the Parole Commissioner, set new standards for how long people should do in prison.

Could Congress delegate this judicial function of resentencing to an administrative agency?

And then there's another question which is based on our allegation that under the new policies, under the guidelines, people serve more time in prison than they serve formally.

That with the heightened emphasis on offense severity, someone who would've been released after he or she had served the third of their sentence, is now required to serve their entire sentence in prison.

If this is true, and we expect the evidence to show that, then there's an ex post facto question, which the Government seems to disagree with but based merely upon the facts rather than upon the applicability of the Ex Post Facto Clause to parole release petition.

Those questions I think weren't brought up in the narrow -- in question 3 in the petition for certiorari, so even if the Court should agree with the Parole Commission on the issue it brought up, there should still be further proceedings in the District Court.

And if the District Court concludes that Geraghty cannot adequately represent the class because he's no longer in prison, as we told the District Court in August of 1978, that's not relevant.

There are other people who have communicated with the attorneys of Mr. Geraghty who said, "We want to be in your case.

We want to be named plaintiffs because we think the system is wrong and it should be changed."

Chief Justice Warren E. Burger: Well, is that the traditional way people become parties to lawsuits?

Mr. Kenneth N. Flaxman: That the -- if -- I think, the traditional ways parties perceive an injury and then seek legal assistance and that's exactly what's happened here.

People -- that the question that Your Honor raised in Roper, how many of these 90,000 people in Roper knows about the case, if that question was asked here, I think that probably, every prisoner who can read or who can converse with other prisoner knows about this case.

I think that was the same kind of information requested from the attorney in Roper.

That -- and these people have come forward to intervene and I represent five people who feel they've aggrieved to want to get redress.

Thank you.

Chief Justice Warren E. Burger: Very Well.

Mr. Jones, do you have anything further?

Rebuttal of Kent L. Jones

Mr. Kent L. Jones: I -- I wanted to point out again that the respondents' arguments basically, go to the wisdom and reasonableness of the Parole Guidelines system and Senator Burdick and the members of the Conference Committee simply disagree on whether this is a wise system.

As we note on page 65 of our brief, Senator Burdick explained that these were the guidelines that he wanted to have promulgate -- promulgated under this legislation and the Conference Committee Reports and now I'll quote it, "The promulgation of guidelines to make parole less disparate and more understandable, has met with such success that this legislation incorporates the system into the statute."

The last point I wanted to make was that respondent in the Court of Appeals both said that, perhaps, the -- the final legislation didn't ratify the guidelines because Representative Kastenmeier said on the floor of the House that the final legislation was a compromise, but to compromise is evidence simply by comparing 4206 (a) to 4206 (d).

The House had proposed a presumptive parole provision under which prisoners would be released after one third of their sentence, unless there were good reasons not to release him.

The Senate on the other hand, wanted the guideline provision.

The Senate got its way in 4206 (a) and the House got most of what it wanted in 4206 (d).

There is a presumptive release provision but it applies after a prisoner serves two thirds of his term and that was the compromise.

Chief Justice Warren E. Burger: Are there any prisoners who in this setting, sentenced for five years maximum, who maybe kept in prison for longer than five years by action of the Parole Board?

Mr. Kent L. Jones: The Parole Commission has no discretion to keep a prisoner in prison after his sentence is expired, even --

Chief Justice Warren E. Burger: The judgment of the Court fixing the sentence is the absolute maximum of confinement, is it not?

Mr. Kent L. Jones: That's correct.

The Parole Commission only exercises discretion within a period that he's lawfully held under the sentence.

Justice John Paul Stevens: It is correct there wasn‘t Mr. Jones that the Parole Commission test has no weight whatsoever, to the sentence given by the trial judge and its not a factor at all in its forms, was it?

Mr. Kent L. Jones: It is not a factor that the Commission considers under the guidelines.

Justice John Paul Stevens: It -- only to the extent that imposes either a minimum or a maximum (Voice Overlap) --

Mr. Kent L. Jones: It determines the eligibility for Parole but it doesn't determine the Commission's exercise of discretion.